NY Senate passes contentious special education bill

ALBANY >> A special education bill derided by opponents as "the mother of all unfunded mandates" passed the Senate during the marathon session that ended at dawn on Saturday.

The bill expands the rights of parents to place children in external special education programs before a school district committee determines whether the placement is justified. That leaves districts open to pay for costly tuition that can top $100,000 a year, opponents say.

A similar bill passed both houses in 2012 and was vetoed by Gov. Andrew Cuomo. This year, the bill did not come up for a vote in the Assembly, as the Legislature ended the session in a more chaotic manner than usual because of the scandals and leadership problems in both houses.

The debate over the bill prompted a sharp exchange Friday night between Senate Education Committee Chairman John Flanagan (R-Suffolk County) and Senator Cecilia Tkaczyk (D-Duanesburg), who cited the opposition of the teachers union and advocacy groups. The bill's main sponsor is Sen. Simcha Felder, a breakaway Brooklyn Democrat who has sided with Republicans in helping the GOP maintain control of the state Senate.

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Opponents cite the cost to public schools and the fear that private and religious schools will abuse the placements. Tkaczyk, a former school board member, irked Flanagan by refusing to accept his explanation that the bill would not cause new costs for school districts.

"You are forcing schools to pay for tuition at other situations, other programs that may not be educationally appropriate and a final decision hasn't been rendered," she said.

"I could not disagree more," Flanagan shot back. "A parent right now, and this affects everyone in this room, either friend, family, relative or constituents - Everybody cares about education, everybody cares about their kids in particular. When you have a child with special needs that level of concern and enhancement goes through the roof."

He said all parents now have the right to disagree with school district rulings in special education cases. "There is no obligation on the part of a school district to start paying tuition until there is a final determination. So your characterization of this, respectfully I'm going to say, is inaccurate."

He said nowhere in the two page bill was there any obligation for school districts to pay tuition if they prevail over a parental placement.

"Well, then I am joined by a huge number of organizations that are stating that," Tkaczyk replied, reading from a list that included NYSUT, the Civil Liberties Union, NAACP, New York City school officials, UFT, and the Big 5 School Districts. She said the only group writing to her expressing support was the Catholic Conference.

"We are currently failing to adequately fund our schools," she said. "Schools now are getting funding levels from 2008-2009 levels. I represent school districts that are very stressed."

Among the critics of the bill are the NYS Council of School Superintendents. "It is well documented that the vast majority of special education cases litigated in New York involve tuition reimbursement cases," the council said in a memo opposing the bill. This proposal guarantees a new line of challenges."

"The Legislature talks about no unfunded mandates yet is ready to pass a bill that will cost taxpayers all over the state more money to benefit a select few and cater to special interest groups representing religious schools," the NYS Association of School Business Officials said in press release on the bill, which they called the mother of unfunded mandates.

"Currently, a Committee on Special Education (CSE) composed of school representatives, parents and experts decide the most appropriate placement for a special needs student. This bill basically circumvents that process and allows the parent to place the child without waiting for the CSE to decide and while the school district waits for the CSE to decide, they have to pay the bills for these private school placements, and if the CSE decides if the parents unilateral placement was not appropriate, it must somehow seek to recoup the public's money from the parents or the private school."

"You should be calling your legislators and asking them how they could support a bill that places such a large unfunded mandate on public schools (typical cost is $100,000 per year) and their taxpayers to benefit private schools, when public schools are facing such fiscal difficulties keeping their own programs intact," NYSABO concluded.